3/23/2011

[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]

I would like to call your attention to another scholar who has argued that the president cannot go to war without Congressional approval: Senator Joe Biden. I am not joking and I am surprised when I say that myself. Now, over at Eyeblast Tv, they have two clips of Biden saying this in 2007 when there was concern/hope that Bush would bomb Iran, threatening Bush with impeachment if he went forward without Congressional approval. Let me show you one of the clips:

But one could assert that this was just partisan politics, an attempt by a man who aspired to be president to reign in a President hated by the left and make himself their “darling” in the process. Only here’s the thing. He said it in 1998, too, when Clinton was the president:

Today, Biden serves as vice president to a commander in chief who has just committed the U.S. military to an action in Libya that was authorized by the U.N. Security Council but was never even so much as debated in the U.S. Congress let alone put to a vote.

Nor has the president argued that the aim of the military action in Libya is to repel an imminent attack on the United States or rescue U.S. citizens.

“The rationale for vesting the power to launch war in Congress was simple,” Biden said in a Senate speech delivered on July 30, 1998. “The Framers’ views were dominated by their experience with the British King, who had unfettered power to start wars. Such powers the Framers were determined to deny the President.”

And Biden’s analysis is surprisingly scholarly, covering for instance the convention notes on the reason why the language was changed originally from stating that Congress had the sole power to “make” war to it being the power to “declare” war.

“The original draft of the Constitution would have given to Congress the power to ‘make war.’ At the Constitutional Convention, a motion was made to change this to ‘declare war.’ The reason for the change is instructive,” said Biden.

“At the Convention, James Madison and Elbridge Gerry argued for the amendment solely in order to permit the President the power ‘to repel sudden attacks,’” said Biden. “Just one delegate, Pierce Butler of South Carolina, suggested that the President should be given the power to initiate war.”

Citing Federalist No. 69, Biden noted that Alexander Hamilton, who among the Framers was perhaps the greatest champion of a strong executive, argued that the Constitution gave the president the authority to direct the military in action only after that action was authorized by Congress.

“Even Alexander Hamilton, a staunch advocate of Presidential power, emphasized that the President’s power as Commander in Chief would be ‘much inferior’ to the British King, amounting to ‘nothing more than the supreme command and direction of the military and naval forces,’ while that of the British King ‘extends to declaring of war and to the raising and regulating of fleets and armies–all which, by [the U.S.] Constitution, would appertain to the legislature,’” said Biden.

“Given this,” Biden concluded, “the only logical conclusion is that the framers intended to grant to Congress the power to initiate all hostilities, even limited wars.”

This is a sentence I didn’t expect to write in my lifetime. Biden’s views are scholarly, considered, and in my opinion, exactly correct. In the same speech he even rebuked the claim that U.N. could in essence declare war for America.

And on the other side, the only scholarly attempt to defend this aciton comes from Jack Goldsmith, who writes:

Legal scholars disagree about the original meaning of the Constitution’s conferral on Congress of the power “to declare war.” Many contend it required Congress to formally approve all uses of U.S. military force abroad, save, as James Madison said at the Convention, in situations needed to “repel sudden attack.” Others maintain the “declare war” clause provides more leeway, allowing the president to use force abroad as long as the force does not rise to the level of “war,” whatever that means. Yet others argue that the framers meant simply to give Congress the authority to signal under international law a state of war; the real work in controlling presidential initiation of force, under this view, was Congress’ control over appropriations and the size of the standing army. There are many more theories about the original understanding. Even if we could definitively resolve this debate, which we can’t, it is unclear why original intent—which in practice rarely determines contemporary constitutional meaning—should control outcomes in the context of presidential war powers, a context that as much as any is marked by radically changed circumstances.

In short, “scholars disagree, so I guess we can’t figure it out, and really who cares what the Constitution says anyway?” Mind you, he says this in a piece subheadlined: “The president’s campaign against Libya is constitutional.” But the article isn’t even really talking about the Constitution, just about how it can be disregarded–unless we are talking about the kind of Constitution that has magic ink whose words change over time on their own and without amendment.

Meanwhile today, the President is barely even pretending to adhere to the Constitutional limits or the limits of the War Powers Act. Here’s the text of his letter to Congress justifying this action:

At approximately 3:00 p.m. Eastern Daylight Time, on March 19, 2011, at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya. As part of the multilateral response authorized under U.N. Security Council Resolution 1973, U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners.

United Nations Security Council Resolution 1973 authorized Member States, under Chapter VII of the U.N. Charter, to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya, including the establishment and enforcement of a “no-fly zone” in the airspace of Libya. United States military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to carry out the measures authorized by the U.N. Security Council Resolution.

Muammar Qadhafi was provided a very clear message that a cease-fire must be implemented immediately. The international community made clear that all attacks against civilians had to stop; Qadhafi had to stop his forces from advancing on Benghazi; pull them back from Ajdabiya, Misrata, and Zawiya; and establish water, electricity, and gas supplies to all areas. Finally, humanitarian assistance had to be allowed to reach the people of Libya.

Although Qadhafi’s Foreign Minister announced an immediate cease-fire, Qadhafi and his forces made no attempt to implement such a cease-fire, and instead continued attacks on Misrata and advanced on Benghazi. Qadhafi’s continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and, as expressly stated in U.N. Security Council Resolution 1973, constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States. Qadhafi’s defiance of the Arab League, as well as the broader international community moreover, represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region. Qadhafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection, with any delay only putting more civilians at risk.

The United States has not deployed ground forces into Libya. United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster. Accordingly, U.S. forces have targeted the Qadhafi regime’s air defense systems, command and control structures, and other capabilities of Qadhafi’s armed forces used to attack civilians and civilian populated areas. We will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations that are postured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973.

For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.

But it is not consistent with the War Powers Resolution (or Act). Read it for yourself. It says that the President can only use force pursuant to 1) a declaration of war or 2) statutory authorization, or 3) if our country, territories or armed forces are attacked. And you will search that letter in vain for an allegation that any of those conditions were met.

It is time for Congress to put its foot down. I am not calling for impeachment, like Joe Biden was in 2007 if Bush bombed Iran without Congressional authorization. But Congress must make it clear to the President that 1) this action was unconstitutional and 2) if this happens again, he will be impeached.

And this is not about whether the war is justified, or a good idea. I personally believe it is both. But I am not a mercenary in my Constitutionalism. I believe it should be followed even when it impedes my preferred policies.

Which is not to impugn the views of people who genuinely believe that this was Constitutional. But I will ask you this. If the President can launch us into war on his own without Congressional consent, what exact purpose is served by the Declaration of War Clause?

And it is exceedingly clear that in 2007-08 both the President and the Vice President believed that the oath of office, where they promised to defend the Constitution, would be violated by this action. So you can chalk this up as example 3,232 of the lawlessness of this administration.

[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]

MAJOR UPDATE: In the original version of this post I whacked Stewart for not going after Obama’s hypocrisy on the war. I was factually wrong. In a new post coming up soon, I will have a clip where he does exactly that in discussing the constitutionality of the war. My limited defense is that the media monitoring websites I frequent didn’t mention it and this is the kind of juicy thing I would have thought they would have mentioned. I apologize for the error.

I’ll leave the original text in place because I don’t believe in memory-holing your mistakes. And that doesn’t disturb my point that the attack on these three Republicans was unfair and intellectually dishonest. I made a mistake and corrected it. Will Jon Stewart?

Update: See at the end for the context of Bolton’s comments. (Spoiler: Stewart wasn’t fair to him, either.)

Last night on the Daily Show Jon Stewart weighed in on the Libyan War, first calling out the incredible hypocrisy on display. And even though I have asked people not to engage in too much Libyan Schadenfreude, I have to admit Stewart has a really fat target in Obama. I mean seriously, the guy who said (video at the link)…

The message I hope to deliver is that democracy, rule of law, freedom of speech, freedom of religion — those are not simply principles of the west to be hoisted on these countries. But, rather what I believe to be universal principles that they can embrace and affirm as part of their national identity, the danger, I think, is when the United States, or any country, thinks that we can simply impose these values on another countrywith a different history and a different culture.

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

…is now illegally going to war without such an actual or imminent threat or Congressional authorization. And surely that is just the tip of the iceberg, right? So let’s pull up the popcorn and enjoy the guilty pleasure of watching Stewart skewer the President for his hypocrisy:

That’s right, instead of going after the very obvious hypocrisy of the President, he goes after three Republicans for their supposed hypocrisy and reflexive opposition to the President. All three of these attacks are unfair, but the McCain one is the most egregious, which is why I am focusing on it. In the first clip, McCain is calling on the President to enforce a no-fly zone. And then in the new clip, McCain says, “obviously if we had taken this step a couple weeks ago a no-fly zone would probably have been enough. Now a no fly zone is not enough.”

But a critical viewer can immediately see why Stewart’s attack was unfair. Here’s a screen cap from the first McCain clip:

And here’s one from the second.

Oh my God, it is so unfair of John McCain to call for a no fly zone on February 27 and then say three weeks later that “a couple of weeks ago a no fly zone would probably have been enough.” Gee, it’s almost like as if McCain wished Obama had followed his advice at the time he gave it and is now lamenting that he didn’t. What a jerk!

And Republican opposition to our country being led around by international powers is hardly a new principle (and indeed, he doesn’t even play enough of the John Bolton clip to evaluate the fairness of that criticism). (Update: I found the transcript and indeed he was not being fair to Bolton. Look at the end of this piece.)

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